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Exhibit (e)(11)
Agency Agreement
dated November 25, 1999
between
Capstone Financial Group, Inc.,
One Group Mutual Funds
and
The One Group Services Company
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AGENCY AGREEMENT
This Agreement is made as of the 25th day of November, 1999 between:
(1) Capstone Financial Group, Inc. ("Company") and (2) One Group Mutual Funds
(the "Trust"); The One Group Services Company (collectively, "TOGSC").
RECITALS
A. The Trust is (I) an open-end investment company with one or more series of
classes of shares (each such series or class of share a "Fund"); TOGSC is ether
(II) an investment adviser to or administrator for the Funds, (III) the
principal underwriter or distributor for the Funds, or (IV) the transfer agent
for the Funds.
B. The Trust wishes to have Company provide to the Trust or on its behalf
certain administrative services with respect to qualified employee benefit plans
(the "Plans") which own shares of such Funds.
C. Company agrees to provide such services on the terms and conditions set
forth herein.
AGREEMENT
THEREFORE, in consideration of the mutual promises set forth herein,
the parties agree as follows:
2. Shareholder Services
A. SHAREHOLDER ACCOUNT SET-UP AND MAINTENANCE - Company shall maintain and
provide adequate facilities and procedures to: (1) establish and maintain
Fund investments on behalf of Plans on the Company transaction processing
and recordkeeping system, and (2) access the Plans current Fund information
including, but not limited to, share balances, dividend information and
transaction history.
B. SHAREHOLDER ASSISTANCE - Company shall make available to the Plans any
information maintained by Company as may be necessary for the Plans to
support and resolve shareholder servicing inquires. Company personnel will
assist the Plans in the investigation of shareholder inquiries when
necessary. Company will support shareholder service inquiries from the
Plans serviced by Company. Company shall not make any statement or
representation concerning a Fund that is not contained in the Trust's
registration statement, annual report or proxy statement or any advertising
or promotional material generated by or on behalf of any Fund.
C. TRANSACTION PROCESSING, AND SETTLEMENT - The Company transaction processing
system shall enable the Plans to purchase, redeem and exchange shares of
Funds available through Company. Company shall facilitate settlement with
each Fund of Plan transactions in such Fund insofar as such transactions
are transmitted by Company on behalf of the Plans.
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The Trust agrees that it shall either: (1) make arrangements for all
transactions processed pursuant to this Agreement to be process through the
National Securities Clearing Corporation Fund./SERV system, or (2) obtain
proper authority for Company to transmit to the Fund or its Agent daily
manual trades until 4:00 p.m. Eastern Time, or such other times as set
forth on Exhibit B, which trades shall remain eligible for that day's
public offering price provided Company received the order by close of
trading that day.
D. SHAREHOLDER ACCOUNT STATEMENT AND DISTRIBUTION - With respect to each Plan
holding Fund investments through Company, Company shall deliver or cause to
be delivered to such Plan periodic statements. Statements will include
transaction detail for the statement period for each Fund in which shares
were purchased, redeemed or exchanged, and a summary of the number of Fund
shares owned and share value thereof as of the statement date to the extent
such value is provided by the Fund.
E. CONFIRMATION PREPARATION AND DISTRIBUTION - Company shall generate a
written confirmation for each purchase, redemption and exchange transaction
affecting each Shareholder's Fund investments held through Company to the
extend such confirmation is required, and such confirmation shall be
distributed to Shareholders through or on behalf of Company or
Correspondents.
F. PAYMENT OF FUND DISTRIBUTIONS - Company shall distribute to Shareholders
all dividend, capital gain or other payments authorized by the trust and
distributed and received by Company, and such distributions shall be
credited to the Plans in accordance with the instructions provided by each
Plan, including but not limited to dividend reinvestment into a Fund, or
cash payments of distributions.
G. PROSPECTUS FULFILLMENT - Company will provide a prospectus to prospective
shareholders or their agent upon request, provided the Trust or its agent
has provided adequate copies thereof to Company or its designee.
The Trust acknowledges and agrees that Company is not responsible for (1)
the compliance of any prospectus or supplement thereto, annual report,
proxy statement or item of advertising or marketing material of or relating
to any Fund, which is prepared by the Trust or its agent, with any
applicable laws, rules or regulations, (ii) the registration or
qualification of any shares of any Fund under any federal or applicable
state laws or (iii) the compliance by any Fund or the Trust or any
"affiliated person" (as that term is defined in the rules under the
Investment Company Act of 1940, as amended), with any applicable federal or
state law, rule or regulation or the rules and regulations of any self
regulatory organization with jurisdiction over such Fund, the Trust or
affiliated person.
Company will not make any offer or sale of Fund shares (a) in any state or
jurisdiction in which such shares are not qualified for sale or exempt from
the requirements of the relevant securities laws at any time after it has
been provided with written notice from the Trust that such Fund is not so
qualified or exempt in such state or jurisdiction, (b) in any state or
jurisdiction in which it is not properly licensed or authorized to make
offers or
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sales, or (c) at any time after it has been provided with written notice
from the Trust that such Fund is not then currently offering shares to the
public.
H. ACCOUNT LEVEL TAX REPORTING - Company shall provide to Shareholders through
Company or Correspondent such reports and information as may be required by
the then-prevailing laws and regulations under the Internal Revenue Code.
II. Representations and Warranties
A. The Trust and TOGSC each represent and warrant that:
(1) it has the requisite authority to enter into this agreement on its own
behalf and, in the case of the Trust, on behalf of the Fund(s), and
(2) the payment to Company of any fees pursuant hereto:
(a) has been duly authorized by the Board of Trustees of the Trust, or
any other persons to the extent such authorization is required to
properly make such payment;
(b) is properly disclosed in the relevant prospectus to the extent
such disclosure may be required, and
(c) is in conformity with all federal, state and industry laws or
regulations to which the Trust or its agents are subject.
B. Company represents and warrants that:
(1) it is a corporation duly organized under the state laws of Oklahoma.
(2) the execution and delivery of this Agreement and the performance of
the services contemplated herein have been duly authorized by all
necessary corporation action in its part, and this Agreement
constitutes the valid and binding obligations of Company; and
(3) it is in material conformity with all federal, state and industry laws
or regulations to which it is subject.
C. Each party hereto represents and warrants that it shall provide to the
others such information or documentation necessary for such party to
fulfill its obligations hereunder, such other information or documentation
- as any party may reasonably request and that it shall comply with such
operating policies and procedures as the parties may adopt from time to
time.
D. Each party is responsible for its compliance with all applicable laws,
rules and regulations governing its performance under this Agreement,
except to the extent its
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failure to comply with any law, rule or regulation is caused by another
party's breach of this Agreement.
III. Fees
A. Asset Based Fee
For the services provided by Company hereunder, the Trust or TOGSC shall
pay to Company a fee with respect to each Fund, which fee shall be based
upon a percentage per annum of the average daily value of the aggregate
number of shares of the Fund held by Company for the accounts of customers
of Company and Correspondents. Such fee shall be calculated and paid in
accordance with Exhibit A hereto.
IV. Indemnification
The Trust and TOGSC shall indemnify and hold harmless Company and each
officer, employee and agent of Company from and against any and all claims,
demands, actions, losses, damages, liabilities, or costs, charges,
reasonable counsel fees, and expenses of any nature ("Losses") arising out
of (1) any inaccuracy or omission in any prospectus or supplement thereto,
registration statement, annual report or proxy statement of any Fund or the
Trust or any advertising or promotional materials generated by any Fund or
the Trust, (ii) any breach by the Trust or TOGSC of any representation,
warranty, covenant, or agreement contained in this Agreement and (iii) any
action taken or omitted to be taken by Company pursuant to this Agreement,
except to the extent such Losses result from Company's breach of this
Agreement, willful misconduct, or negligence.
Company shall indemnify, defend and hold the Trust and TOGSC (including
their officers, directors, employees and agents and any person who controls
either of them) free and harmless from and against any and all Losses which
such persons may incur under the Securities Act of 1933, as amended, or
under common law or otherwise, arising out of or based upon (1) any breach
of any representation, warrant, or covenant made by Company herein, (ii)
any failure by Company to perform its obligations as set forth herein or,
(iii) any action taken or omitted by Company to the extent that any Losses
associated therewith are a result of Company's breach of this Agreement,
willful misconduct or negligence.
V. Confidentiality
Each party acknowledges and understands that any and all technical, trade
secret, or business information, including, without limitation, financial
information, business or marketing strategies or plans, product development
or customer information, which is disclosed to the other or is otherwise
obtained by the other, its affiliates, agent or REPRESENTATIVES during the
term of this Agreement (the "Proprietary Information" - is CONFIDENTIAL AND
PROPRIETARY, CONSTITUTES TRADES SECRETS OF THE OWNER, AND is of great value
and importance to the success of the owner's business. Each party agrees to
use its best efforts (the same being not less than that employed to protect
his own proprietary
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information) to safeguard the Proprietary Information and to prevent the
unauthorized, negligent or inadvertent use or disclosure thereof Neither
party shall without the prior written approval of any officer of the other,
directly or indirectly, disclose the proprietary Information to any person
or business entity except for a limited number of employees, attorneys,
accountants and other advisors of the other on a need-to-know basis or as
may be required by law or regulation. Each party shall promptly notify the
other in writing of any unauthorized, negligent or inadvertent use or
disclosure of proprietary Information. Each party shall be liable under
this Agreement to the other for any use or disclosure in violation of this
Agreement by its employees, attorneys, accountants or other advisors or
agents. This Section V shall continue in full force and effect
notwithstanding the termination of this Agreement.
V1. Duration and Termination of Agreement
With respect to any Fund, this Agreement shall become effective upon the
date such Fund is identified on Exhibit B, and this Agreement is approved
by the Trust's Board of Trustees if such approval is required, and shall
continue in force for one year, and shall thereafter continue automatically
for successive annual periods unless earlier terminated and subject to any
periodic approval required by the Trust's Board of Trustees. This Agreement
is terminable as to any Fund by any party upon 60 days written notice
thereof to the other parities or upon default hereof provided that such
default shall not terminate this Agreement to the extent that the
defaulting party has been notified of such default by the non-defaulting
party and the defaulting party cures such default within 10 business days
of notice of such default.
After the date of termination as to a Fund, no fee will be due with respect
to any shares of such Fund that are first placed or purchased in Company or
Correspondent customer accounts after the date of such termination.
However, notwithstanding any such termination, the Trust and TOGSC will
remain obligated to pay Company the Asset Based Fee as to each share of
such Fund that was considered in the calculation of such fee as of the date
of such termination, for so long as such share is held in the Company or
Correspondent account. This Agreement, or any provision hereof, shall
survive termination to the extent necessary for each party to perform its
obligations with respect to shares for which the Asset Based Fee continues
to be due subsequent to such termination.
Notwithstanding anything to the contrary contained in this Section VI, this
Agreement will terminate automatically with respect to TOGSC in the event
that TOGSC ceases to serve as principal underwriter or distributor for the
Funds pursuant to a termination of its Distribution Agreement with the
Fund; or, with respect to the Trust in the event that the Fund's plan of
distribution, adopted pursuant to Rule l2b-1 under the 1940 Act, or any
other plan for the financing of shareholder servicing activities (the
"Plan") which finances such payment obligation is terminated for whatever
reason by the Trust's Board of Directors. In that connection the Trust's
and TOGSC's payment obligations with respect to fees will cease as of the
effective date of (I) the termination of TOGSC's Distribution Agreement
with the Fund or (ii) the termination of the plan, as the case may
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be. This paragraph does not relieve the Trust or TOGSC of the obligation
for payment of past fees due under this Agreement. In the event such
payment obligation shall cease in accordance with clause (i) above, Company
may seek to receive such payments from any successor distributor that is
appointed by the Funds. In the event such payment obligation shall cease in
accordance with clause (ii) above, the Trust and Company agree to negotiate
in good faith with respect to whether and to what extent the Trust will
continue to make such payments either from a related party's resources or
in reliance upon financing that is provided by a successor plan.
VIII. Miscellaneous
A. CUSTODY - The Trust acknowledges that Fund shares maintained by Company for
shareholders hereunder are held in custody for the exclusive benefit of
customers of Company or its Correspondents and shall be held free of any
right, charge, security interest, lien or claim against Company in favor of
the Trust or its agents acting on behalf of the Trust.
B. TRANSACTION CHARGES - During the term of this Agreement, Company shall not
assess against or collect from its brokerage customers any transaction fee
upon the purchase or redemption of any Fund's shares that are considered in
calculating the fee due pursuant to Section III hereof.
C. Nonexclusively - The Trust acknowledges that Company may perform services
similar to those to be provided under this Agreement to other investment
companies, investment company sponsors, or service providers to investment
companies.
D. Force Majeure - No party or its affiliates shall be liable to any other
party for any damage, claim or other loss whatsoever caused by
circumstances or events beyond its reasonable control.
E. Notices - All notices and communications required or permitted by this
Agreement shall be in writing and delivered personally or sent by first
class mail unless otherwise agreed. All such notices and other
communications shall be made:
If to the Trust and TOGSC, to:
The One Group Services Company
Attn: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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If to Company, to: -
Capstone Financial Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
F. This Agreement and any Exhibits hereto may be amended only upon the written
agreement of the parties.
G. This Agreement may not be transferred or assigned by either the Trust,
TOGSC or Company and shall be construed in accordance with the laws of the
State of Ohio.
H. The names "One Group Mutual Funds" and "Trustees of the One Group" refer
respectively to the business trust created and the Trustees, as trustees
and not individually or personally, acting from time to time under a
Declaration of Trust amended, restated and dated as of February 11, 1993 to
which reference is hereby made and copy of which is on file at the office
of the Secretary of the Commonwealth of Massachusetts and elsewhere as
required by law, and to any and all amendments thereto so filed or
hereafter filed. The obligations of "One Group" entered into in the name of
on behalf thereof by any of the Trustees, representatives or agents are
made not individually, but in such capacities, and are not binding upon any
of the Trustees, shareholders or representatives of the Trust personally,
but bind only the assets of the Trust, and all persons dealing with any
Fund must look solely to the assets of the Trust belonging to such Fund for
the enforcement of any claims against the Trust.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ONE GROUP MUTUAL FUNDS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------
Title: Vice President
-------------------------
THE ONE GROUP SERVICES COMPANY CAPSTONE FINANCIAL GROUP, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- ----------------------------
Title: President Title: President
------------------------- ---------------------------
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EXHIBIT A
FEE SCHEDULE
1. Asset Based Fee
(a) For the services provided by Company hereunder, the Trust or TOGSC
shall pay to Company a fee with respect to each Fund, calculated daily
and paid monthly in arrears, equal to 25 percent per annum of the
daily market value of the total number of shares of such Fund held in
accounts at Company (determined by multiplying the number of such
shares times the publicly-reported net asset value of each share),
excluding the value of (1) shares held in a brokerage account prior to
the effective date of the Agreements to the Fund issuing such shares
("Pre-Participating Assets"), and (ii) shares first placed or
purchased in a brokerage account after the termination of the
Agreement as to the trust issuing such shares. The total number of
shares of all Funds with respect to which a fee will be due to
Fidelity hereunder shall be referred to in this Exhibit A as
"Participating Assets".
(b) Subsequent to each month-end, Company shall send to TOGSC a statement
of the market value of shares of the Fund for which the fee is
calculated for the preceding month, together with a statement of the
amount of such fee.
(c) The Trust or TOGSC shall pay to Company such fee within 30 days after
their receipt of such statement. Such payment shall be by wire
transfer or other form acceptable to Company and shall be separate
from payments related to redemption proceeds and distributions.
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EXHIBIT B
FUNDS
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FUND NAME CLASS TYPE CUSIP QUOTRON
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One Group Balanced Fund A 681937470 OGASX
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One Group Large Cap Growth A 681937249 OLGAX
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One Group Large Cap Value A 681937876 OLVAX
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One Group Mid Cap Growth A 681937728 OSGIX
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One Group International Equity Index A 681937561 OEIAX
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One Group Mid Cap Value A 681937751 OGDIX
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One Group Equity Index A 681937827 OGEAX
------------------------------------------------------------------------------------------------------------------
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One Group Equity Income A 681937785 OIEIX
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One Group Diversified Equity A 681939815 PAVGX
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One Group Small Cap Growth A 681939849 PGSGX
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One Group Small Cap Value A ▇▇▇▇▇▇▇▇▇ PSOAX
------------------------------------------------------------------------------------------------------------------
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One Group Diversified Mid Cap A ▇▇▇▇▇▇▇▇▇ PECAX
------------------------------------------------------------------------------------------------------------------
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One Group Diversified International A ▇▇▇▇▇▇▇▇▇ PGIEX
------------------------------------------------------------------------------------------------------------------
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One Group Market Expansion Index A ▇▇▇▇▇▇▇▇▇ NIA
------------------------------------------------------------------------------------------------------------------
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One Group Investor Growth A 681939674 ONGAX
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One Group Investor Growth & Income A 681939617 ONGIX
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One Group Investor Conservative Growth A 681939641 OICAX
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One Group Investor Balanced A 681939575 OGIAX
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One Group Intermediate Bond A 681937264 OGBAX
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One Group Government Bond A 681937330 OGGAX
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One Group Short-Term Bond A 681937629 OGLVX
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One Group Income Bond A 681937652 ONIAX
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One Group Ultra Short-Term Bond A 681937314 ONUAX
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One Group High Yield Bond A ▇▇▇▇▇▇▇▇▇ OHYAX
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One Group Treasury & Agency A 681939526 OTABX
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One Group Bond Fund A ▇▇▇▇▇▇▇▇▇ PGBOX
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